M.Y. Eqbal, J. - (1.) I.A. No. 21290 of 2009 By this application prayer has been made by the appellant for restoration of possession of the suit premises wherefrom he was evicted in spite of the stay order passed by this Court.
(2.) The undisputed facts are that this appeal was admitted for hearing on 25.5.2009 after formulating substantial question of law. By the said order further proceeding in Execution Case No. 1 of 2008 pending in Court of Sub-Judge IV Koderma was stayed. In the meantime, the order for issuance of writ for delivery of possession was passed by the Court below on 25.5.2009 and the writ was sent to the Nazir, Civil Court, Koderma for execution. It is contended by the appellant that on 30.5.2009 both the parties informed the Executing Court about the stay order passed by this Court. The Court below after receiving the information about the stay order passed by this Court immediately passed an order on 30.5.2009 recalling the order of delivery of possession.
(3.) The appellant's case is that in spite of the order passed by the Court below, the Nazir, Civil Courts, Koderma affected the delivery of possession at 2.30 p.m. on 30.5.2009. The appellant thereafter filed an application in the Court below for restoring the possession of the suit premises which was delivered to the respondent in spite of the stay order passed by this Court and the recall order passed by the Court below. The application was finally heard on 3.6.2009 and accordingly order was passed. The relevant portion of the said order is quoted herein below : "After hearing both the parties and after going through the case record, I find that although, the warrant of delivery of possession was issued by this Court on 25.5.2009, but as soon as the learned counsel of both the parties appeared before the Court on 30.5.2009 and informed to the Court regarding getting information on telephone from their respective counsels of the Hon'ble Court that further proceeding of execution case No. 1/08 has been stayed by the Hon'ble Court, then the warrant of delivery of possession was recalled by this Court on 30.5.2009 and the recall order was also sent to the Nazir, Civil Court, Koderma, but for the reasons best known to the Office Clerk, the recall order of the D.P. was served upon the Nazir on 3.6.2009 in stead of 30.5.2009 during the Court's hour as it is revealed from the peon book. The report of Nazir, Civil Court, Koderma regarding execution of the delivery of possession goes to show that the delivery of possession of the suit premises was handed over by the Nazir to the D.H. on 30.5.2009 at 2.30 in the after noon i.e. after the Court's hour, whereas the warrant of delivery of possession of the suit premises was already recalled by this Court in the light of oral submissions of learned counsels of both the parties. Therefore, the Nazir, Civil Court Koderma was supposed to return the warrant of delivery of possession unexecuted in the light of recall order of D.P. dated 30.5.2009, which was issued after hearing both the parties in the open Court on 30.5.2009 that further proceeding of execution case No. 1/08 has been stayed by the Hon'ble High Court, Ranchi on 25.5.2009. Therefore, in the light of the facts and circumstances as stated above since the warrant of delivery of possession was already recalled by this Court on 30.5.2009. Therefore, the Nazir ought to have returned the warrant of delivery of possession unexecuted to the Court. Hence the petition and prayer filed on behalf of the J.D. date 1.6.2009 is allowed and the peaceful possession of the suit premises is restored to the J.D. by breaking open the lock put on the premises. O/C is directed to issue the directions of restoring the possession of suit premises in favour of the J.D. to the Nazir, Civil Court, Koderma and the Nazir is also directed to return all the articles recovered from the suit premises in favour of the J.D. The O/C is directed to send the entire case record of Eviction Suit No. 11/05 to the Hon'ble Jharkhand High Court, Ranchi.";